Originally published in the LST
Review, Volume 23, Issue 306 & 307, April & May
2013

Introduction

The Nature of Impunity

Those who
abuse power almost invariably enjoy the power to abuse.
Impunity is both a corollary of power and a tool for power
retention; a phenomenon that, by design, perpetuates the
misery of those affected by it. As suggested by Paul G.
Lauren, understanding official impunity requires recognition
of a government's inherent belief that the treatment of
those under its control and the policies it pursues are
beyond scrutiny.[1] In a sense, the international legal
regime has helped galvanize the idea of impunity. Through
the emergence of concepts such as nationhood and national
sovereignty, governments began to realize with increasing
regularity that their actions could not be subjected to
scrutiny. As Lauren aptly puts it, 'victims therefore
remained objects of international pity rather than subjects
of international law.'[2] A widespread culture of impunity
throughout the world was indeed the culmination of such
normative and ideological developments.

More recent trends
in international criminal law and human rights protection
have led to a transformation in the way we view impunity.
International momentum, as demonstrable by the plethora of
rights conventions, resolutions and reports within the
United Nations system, has begun to build towards an
unequivocal demand for the end to official impunity.[3] In
this context, the United Nations Updated Principles on
Action to Combat Impunity defines 'impunity' in the
following terms:

he impossibility, de jure or de facto, of
bringing the perpetrators of violations to account-whether
in criminal, civil, administrative or disciplinary
proceedings-since they are not subject to any inquiry that
might lead to their being accused, arrested, tried and, if
found guilty, sentenced to appropriate penalties, and to
making reparations to their victims.[4]

Despite the fact
that those with power have certain natural inclinations
towards impunity, contemporary international norms clearly
recognize the general obligation of States to take effective
action to combat impunity. Accordingly, principle 1 of the
UN Principles on Action to Combat Impunity
declares:

Impunity arises from a failure by States to meet
their obligations to investigate violations; to take
appropriate measures in respect of the perpetrators,
particularly in the area of justice, by ensuring that those
suspected of criminal responsibility are prosecuted, tried
and duly punished; to provide victims with effective
remedies and to ensure that they receive reparation for the
injuries suffered; to ensure the inalienable right to know
the truth about violations; and to take other necessary
steps to prevent a recurrence of violations.

Thus there
are five basic obligations cast upon States in respect of
combating impunity: first, to investigate violations of
human rights; second, to take appropriate measures against
perpetrators including prosecution and punishment; third, to
provide victims with appropriate remedies and reparation;
fourth, to facilitate the ascertainment of the truth; and
finally, to develop and implement preventive measures. The
nature and scope of these obligations reveal that impunity
is a systemic problem, which requires a systematic response.
Thus States are responsible for not only combating impunity
in individual cases but also for exposing its very fabric
and transforming the culture that sustains it.

A number of
commentators present compelling normative justifications for
combating impunity.[5] Diane Orentichter for instance argues
that international law obligations form an important
counterweight to impunity and must be seen as 'another
weight added to the scales on the side of justice.'[6]
Moreover, other commentators such as Paul Lauren[7] and
Martha Minow[8] present accountability as the central goal
of justice. They contend that breaking through the 'walls of
impunity' and moving to a 'culture of accountability'
requires that offenders be held accountable.[9] Earlier
authors such as Luc Huyse have observed: 'to replace moral
order requires that 'justice be done'...there is a moral
obligation to victims to prosecute those responsible.'[10]
Such reasoning is also implicit in Orentlichter's suggestion
that prosecution is essential to justice, as it 'offers to
restore the fundamental norms of human decency and to secure
the moral integrity of society in addition to deterring
future crimes.'[11]

Notwithstanding encouraging trends in
international law and academic consensus on the importance
of combating impunity, the practical response to the issue
has tended to hinge on the gravity of the human rights
violations concerned. The international community's response
to both the Yugoslavian and Rwandan crises-though
belated-were commendable, considering the Security Council
resolutions that led to the establishing of two ad hoc
tribunals. Thus at least a concerted effort was made to
bring the perpetrators of some of the most heinous crimes of
the recent past to justice. However, serious international
condemnation of impunity appears to take place only in the
context of the gravest of violations, leaving States today
to continue to enjoy the benefits of incredible levels of
impunity. The harder cases, such as those involving U.S.
action in Iraq, Afghanistan and Guantanámo Bay, Cuba, have
failed to see justice, accountability and victim reparation
in the manner and form contemplated by international norms.
In a sense, the lack of consistent international pressure
has revealed the need for greater impetus in terms of
enforcing the obligations of individual States to combat
impunity within their jurisdictions.

Similarly, in the
case of Sri Lanka, the international community, while
acknowledging widespread impunity, has not interpreted gross
human rights violations taking place in Sri Lanka as
amounting to a threat to international peace and
security.[12] Hence the primary obligation to investigate
human rights violations, prosecute and punish perpetrators,
and provide reparations for victims, remains with the Sri
Lankan State. Whether impunity lies in respect of the
gravest human rights abuses imaginable, as seen in
Yugoslavia and Rwanda, or serious violations, as seen in Sri
Lanka, the inescapable need to eradicate it remains the
same. Accordingly, the words of former UN Secretary General
Kofi Annan uttered over a decade ago, remains infinitely
true, regardless of the context of impunity:

There can be
no healing without peace; there can be no peace without
justice; and there can be no justice without respect for
human rights and the rule of law.[13]

The Sri Lankan
Crisis of Impunity

Several factors within the
politico-legal system in Sri Lanka contribute towards its
culture of impunity. This paper focuses on one particular
aspect of this problem, i.e. constitutional and statutory
immunities, and postulates that these immunities form the
foundation on which the culture of impunity is built. Before
delving into this focus area, it is perhaps important to
briefly outline the entire gamut of factors that lead to
impunity in Sri Lanka.

First, the origin of impunity is
rooted in the concept of presidential immunity. Following
the promulgation of the 1978 Constitution, the executive
presidency was introduced and entrenched within the
politico-legal system in Sri Lanka. The President now wields
tremendous powers of governance, which clearly invade the
spheres of other organs of government. His or her sphere of
influence has expanded over the years, culminating in the
passing of the Eighteenth Amendment to the Constitution.
This Amendment effectively entrenched absolute power in the
executive by removing the term limit of the presidency and
ensuring that key appointments including that of the Chief
Justice and the Attorney-General were made at the unilateral
behest of the President. Hence granting immunity to an
over-mighty executive invites an irrevocable system failure.
Presidential immunity and other statutory immunities clearly
set a structural tone which results in impunity, as the
inherent lack of accountability flows from the highest seat
of power down to the lowest state functionary.

Second, the
introduction of the emergency regime has ensured the
widespread permeation of impunity. It is no coincidence that
the President plays a pivotal role within the emergency
regime: by declaring states of emergency, calling out the
Armed Forces to maintain law and order under the Public
Security Ordinance No. 25 of 1947 (as amended) (PSO), and,
as Minister of Defence, issuing detention orders under the
Prevention of Terrorism (Temporary Provisions) Act No. 48 of
1979 (as amended) (PTA).The fact that-in theory at
least-none of these actions may be effectively challenged in
a court of law, provided an overarching cover of 'emergency'
to law enforcement authorities inclined to violate human
rights. Despite the fact that the Sri Lankan judiciary has
attempted to limit the reach of these ouster clauses as
traditionally termed, there is little doubt that the culture
of impunity in Sri Lanka owes its entrenchment to the near
perpetual state of emergency in the country. In recent
years, the withdrawal of the state of emergency promulgated
under the PSO has not changed Sri Lanka's 'emergency
culture', which continues under the equally draconian
provisions of the PTA and the regulations issued under
it.

Third, the perpetuation of impunity is dependent on
its sustained accommodation by the criminal justice system.
Quite apart from the traditional immunities afforded to
public officials and the ad hoc enactment of specific
'immunity laws', the role of the Attorney-General has been
pivotal in this regard. The historical evolution of the
Attorney-General's role-from an independent and impartial
officer of the state, to a subservient agent of the
executive-has taken place in tandem with the emergence of
impunity in Sri Lanka. Hence the Attorney-General's role in
prosecuting perpetrators of human rights violations, as well
as in representing state agents accused of violating human
rights, is decisive to the continued sustaining of the
culture of impunity in the country.

Fourth, the erosion of
judicial independence in Sri Lanka has impacted on the rule
of law in the country. Factors such as the flaws in the
system of judicial education and training, the lack of
integrity in the process of appointing judges and the lack
of security of tenure appear to have contributed to the
erosion of the independence of the judiciary and have
encouraged the prevalence of impunity.

Fifth,
parliamentary privilege has had at least a notional bearing
on the issue of impunity. Under section 4 of the Parliament
(Powers and Privileges) Act No. 21 of 1953, no Member of
Parliament 'shall be liable to any civil or criminal
proceedings, arrest, imprisonment, or damages by reason of
anything which he may have said in Parliament or by reason
of any matter or thing which he may have brought before
Parliament by petition, bill, resolution, motion or
otherwise.' The courts have in fact interpreted proceedings
in Parliament to not only include formal transaction of
business in Parliament or in committees, but also to include
matters connected with or ancillary to the formal
transaction of business.[14] Moreover, the conduct of
Members of Parliament has often been exempted from media
reporting, thereby diminishing public accountability of
parliamentarians.[15] The 1978 Amendment to the Principal
Act gave Parliament concurrent powers with the Supreme Court
to punish offenders including media personnel in respect of
breaches of privilege specified in Part A of the Schedule of
the Act. These concurrent powers were subsequently removed
through an Amendment brought in 1997.[16] Yet the Amendment
of 1980,[17]which penalizes the wilful publishing of any
report of any debate or proceeding in Parliament containing
words or statements after the Speaker has ordered such words
or statements to be expunged from the official report of the
Hansard, continues to persist. Such provisions appear to
permit irresponsible Members of Parliament to evade public
accountability for statements made on the floor.

While
each of the five factors outlined above contributes towards
the entrenchment, permeation and maintenance of the culture
of impunity in Sri Lanka, we advance the view that
constitutional and statutory immunities provide perhaps the
most decisive contribution. In this particular paper, we
examine relevant case law, archival material and available
literature on the subject of presidential immunity as well
as statutory immunities afforded to public
officials.

Unraveling the precise nature of impunity in
Sri Lanka is indisputably relevant to on-going debates on
accountability in Sri Lanka. The prevalence of impunity in
respect of state officers committing human rights abuses
lays claim to a complex history encompassing two
insurrections propelled by radicalized Sinhala youth in the
seventies and eighties as well as a separatist struggle in
the North and East led by the Liberation Tigers of Tamil
Eelam (LTTE). In the past two years, there have been calls
for accountability in respect of violations of international
human rights and humanitarian law committed by both parties
to the conflict during the final stages of the war between
the government and the LTTE. It is probable that some of the
underlying structural forces that drive the present
government's strikingly poor approach to accountability
would also be revealed in the course of this analysis.

2.
Presidential Immunity

The 1978 Constitution introduced the
notion of an executive presidency into the constitutional
framework in view of the state's agenda to expedite economic
development. Abandoning the previous Westminster style of
government, (premised on a ceremonial Head of State with an
executive Prime Minister and a Cabinet of Ministers
collectively responsible to Parliament), that was the core
of previous Constitutions in 1948 and 1972, the creation of
this new supreme executive office was justified on the basis
that it would ensure greater stability in terms of vital
decisions taken in the national interest. The office of the
Executive President, with its claiming of broad immunities,
was also expected to provide greater protection for
minorities in Sri Lanka. Hence the concept of presidential
immunity became very much entrenched in the scope and
structure of the present Constitution.

However, scarcely a
decade later, it had become broadly recognised that the
concentration of executive powers in one individual along
with the immunities attached to the office had proved to be
greatly inimical to the constitutional balance of powers.
The manifestoes of political parties promised to revert to
the old Westminster system of rule when competing for
electoral votes. Yet, each government that came into power
retained the executive presidency, with abuse of power
becoming progressively more evident as the decades
passed.

The enactment of the Eighteenth Amendment to the
Constitution in 2010 brought to a close an era in which
successive presidential candidates had promised to abolish
the executive presidency. Instead, it ushered in a new epoch
where an over-mighty president for life became a plausible
reality. The relationship between constitutional and
statutory immunities afforded to one individual and the
culture of impunity in Sri Lanka is the essential focus of
this section of the Study.

The present section undertakes
an analysis of the presidential immunity clauses in both the
Constitution of Sri Lanka and the Public Security Ordinance
No. 25 of 1947, and thereafter examines the relevant
jurisprudence and academic observations on the
subject.

Analysis of the ConstitutionThe Basis for
Presidential ImmunityArticle 35(1) of the Constitution
provides:

While any person holds office as President, no
proceedings shall be instituted or continued against him in
any court or tribunal in respect of anything done or omitted
to be done by him either in his official or private
capacity.

The above Article appears to provide absolute
immunity to the individual holding the office of President
for the duration of his or her tenure. The provisions of
Article 35(2), however, explicitly limits immunity to the
duration of tenure, as it suspends the running of time
during a person's tenure in office as President for the
purpose of determining whether an action against that person
is out of time or subject to prescription. Therefore,
actions or omissions by the person holding office as
President prior to assuming that position could be subject
to litigation, once that person ceases to hold office as
President. Pending actions against a person at the time of
assuming office as President would effectively be suspended
until the person ceases to hold office. Further, official or
private acts or omissions of the President while holding
office may be subject to litigation once the President
relinquishes his authority under the Constitution. This
would seem to be a simple reading of the text of Article
35(1) read with Article 35(2).

Restrictions on
Presidential ImmunityArticle 35(3) provides:

The
immunity conferred by the provisions of paragraph (1) of
this Article shall not apply to any proceedings in any court
in relation to the exercise of any power pertaining to any
subject or function assigned to the President or remaining
in his charge under paragraph (2) of Article 44 or to
proceedings in the Supreme Court under paragraph (2) of
Article 129 or to proceedings in the Supreme Court under
Article 130 (a) relating to the election of the President or
the validity of a referendum or to proceedings in the Court
of Appeal under Article 144 or in the Supreme Court,
relating to the election of a Member of
Parliament.

Provided that any such proceedings in relation
to the exercise of any power pertaining to any such subject
or function shall be instituted against the
Attorney-General.

The provisions of Article 35(3) of the
Constitution appear to further restrict the extent of
immunity granted to an incumbent President. The President is
permitted under Article 44(2) of the Constitution to assign
to himself or herself any ministerial subject or function.
For instance, the incumbent President has assigned to
himself, the subjects of Defence, Finance, Ports & Aviation
and Highways. However, it appears that his actions in his
capacity as Minister of the relevant subjects are not exempt
from suit. This is particularly important in terms of the
President's actions in the capacity of Minister of Defence,
where he is authorized to issue detention orders and
promulgate regulations under the Prevention of Terrorism
(Temporary Provisions) Act No. 48 of 1979. The role of the
Attorney-General in defending the President in proceedings
falling within the purview of this Article will be closely
examined later in this Study.

Analysis of
StatutesPublic Security Ordinance

Section 8 of the
Public Security Ordinance No.25 of 1947 (PSO) provides: 'No
emergency regulation, and no order, rule or direction made
or given thereunder shall be called in question in any
court.'

The office of the President itself promulgates
these Emergency Regulations (ERs). Thus the Regulations fall
directly within the scope of presidential immunity. The tone
that such a clause sets is somewhat incredulous; as such
regulations are not subjected to the rigorous process that
is associated with lawmaking. Even Bills of Parliament are
subject to a form of pre-enactment judicial review within a
narrow window of opportunity.[18] ERs promulgated by the
President, however, appear to be beyond judicial reach given
the range of ouster clauses contained both in the
Constitution and in the PSO.[19] Hence the law clearly
permits the perpetuation of a state of emergency well beyond
the need of the hour. The repercussions of this permissive
framework will be discussed in greater depth in the next
chapter. However, there have been sporadic instances where
presidential acts have been the subject of judicial review.
Particular judges of Sri Lanka's Supreme Court have taken
care not to apply the doctrine of presidential immunity in a
manner that results in blanket immunity to those purporting
to act under the ERs. Most notably, there have been
instances where ERs promulgated by the President has been
successfully challenged in the Supreme Court.[20]

Such
progressive judicial reasoning has, however, depended
largely both on the individual capacity and commitment of
the judge hearing a particular case as well as the political
context of the day. These judicial precedents have proved to
be insufficient in limiting institutionally entrenched
presidential immunity as the succeeding analysis will
demonstrate. There is little doubt therefore that the
origination of impunity can be traced to the manner in which
the system treats the one individual with the most amount of
power. Instead of building checks and balances so as to
avoid absolute power, the system grants the very thing that
ensures absolution: immunity. In this context, a
constitutional and legal culture in which accountability is
under-prioritized is immediately established. The simple
equation remains: where leaders are permitted to act with
impunity, their followers act likewise. Hence impunity in
Sri Lanka appears to be very much a structural problem,
starting with the office of the Executive
President.

Analysis of Case Law

This section examines
several key cases that deal with the law on presidential
immunity. It is noted that though the statutory framework
excludes any judicial review of presidential
decision-making, presidential immunity has been a subject
addressed by certain progressive courts. For example, the
courts have not applied the doctrine of presidential
immunity in a manner that results in blanket immunity to
those purporting to act under the ERs. The Supreme Court has
consistently reviewed ERs promulgated by the
President[21]

The following analysis is presented in
chronological order so as to ascertain the direction in
which jurisprudential shifts-if any-have taken
place.

Visavalingam v. Liyanage (Case No. 1)[22]

This
was the first case to deal with the question of presidential
immunity under the 1978 Constitution. The case concerned the
issue of whether the failure of the judges of the Supreme
Court and Court of Appeal to take the necessary oaths before
the President within the specified time limits under the
Sixth Amendment to the Constitution resulted in their
ceasing to hold office as judges. A five-judge bench had
been constituted to hear a fundamental rights application,
but the sitting was adjourned when it came to light that the
Justices of the Court had not taken oaths as required by the
Sixth Amendment.[23] The situation was compounded by the
fact that all the judges received fresh letters of
appointments and took their oaths afresh before the
President after the time limits had run out. On resumption
of the sittings, the question arose whether the hearing
should be held de novo or merely continued. The State argued
that proceedings should be held de novo because the judges
had ceased to hold office and had been reappointed afresh,
while the petitioner contended that the proceedings should
be continued because the judges had not ceased to hold
office de jure. One of the preliminary objections the State
raised was that the Court was precluded from directly or
indirectly calling into question or making a determination
on any matter relating to the performance of the official
acts of the President by operation of Article 35(1).

The
majority of the Supreme Court held that proceedings could be
continued because the judges had not ceased to hold office.
In his concurrence, Justice Sharvananda (as he was then)
dismissed the preliminary objection raised by the State. He
observed:

...an intention to make acts of the President
non justiciable cannot be attributed to the makers of the
Constitution. Article 35 of the Constitution provides only
for the personal immunity of the President during his tenure
of office from proceedings in any Court. The President
cannot be summoned to Court to justify his action. But that
is a far cry from saying that the President's acts cannot be
examined by a Court of Law.[24]

This was an important
principle in relation to the scope of the doctrine of
presidential immunity. The Court appeared to draw a crucial
distinction between the person of the President-who is
necessarily granted immunity from suit-and the acts of the
President-which necessarily remain subject to judicial
review. Justice Sharvananda further opined:

Though the
President is immune from proceedings in Court a party who
invokes the acts of the President in his support will have
to bear the burden of demonstrating that such acts of the
President are warranted by law; the seal of the President by
itself will not be sufficient to discharge that
burden.[25]

Thus, in this early case, the Supreme Court
adopted a fairly liberal position vis-à-vis the scope of
presidential immunity. It was hence concluded that the
invocation of the President's acts by another person per se
would not preclude the Court from inquiring into the
legality of the President's act or omission.

Kumaranatunga
v. Jayakody[26]

This case concerned the election for the
Mahara seat in Parliament held on 18th May 1983. The
petitioner and the 1st respondent were amongst the
candidates and the 1st respondent won the election defeating
the petitioner by 45 votes. The petitioner then filed an
election petition seeking to have the election declared void
on the grounds inter alia that the 2nd respondent, as agent
of the 1st respondent, made false statements of fact in
relation to the personal character and conduct of the
petitioner, a corrupt practice under section 58(d) read with
section 77(c) of the Ceylon (Parliamentary Elections) Order
in Council of 1946. The defence pleaded presidential
immunity, as the 2nd respondent held the office of President
of the Republic of Sri Lanka at the time.

The Court of
Appeal held that every case in which a party relies on a
constitutional provision does not automatically involve the
interpretation of the Constitution. It was held that
'interpretation' is the process of reducing the statute
applicable to a single sensible meaning and the making of a
choice from several possible meanings. 'Application' on the
other hand is the process of determining whether the facts
of the case come within the meaning so chosen. It was
accordingly opined that the language of Article 35(1) of the
Constitution is so clear and unambiguous that the need for
interpretation of this Article did not arise. The Court was
of the view that there were two aspects to Article 35(1):
first, that the President is immune from all proceedings,
and second, that the Court is barred from entertaining and
continuing any proceedings against him. It was further held
that there are only three exceptions to presidential
immunity and they are set out in Article 35(3): proceedings
in relation to the exercise of any ministerial function
which he assigns to himself under Article 44(2) of the
Constitution; impeachment proceedings under Article 38(2)
read with Article 129(2) of the Constitution; and election
petition proceedings relating to the election of the
President himself under Article 130(a) of the Constitution.
The Court also held that the Ceylon (Parliamentary
Elections) Order in Council of 1946 has not been elevated to
constitutional status and that the requirements of joinder
of parties set out in section 80A(1)(b) of the Order in
Council cannot supersede Article 35(1) of the Constitution.
Hence no petition can be instituted impleading the President
as a respondent.

Justice Tambiah proceeded to opine:

The
language of Article 35 is clear and unambiguous. Article
35(1) embraces all types of proceedings and confers a
blanket immunity from such proceedings, except those
specified in Article 35(3). The fact that the immunity will
be misused is wholly irrelevant (emphasis added).

The
Court clearly adopted a conservative stance on the issue and
declined to examine the question whether the President
committed the corrupt practice of making a false statement.
The petition was accordingly dismissed, thereby setting an
unhealthy precedent in favour of granting broad immunity to
the President. It is evident that such interpretation
created a wide space for the President himself to act with
impunity and possibly engage in certain corrupt practices to
the benefit of his agents during elections other than
presidential elections. Thus, in many ways, the case
represented the genesis of an unhealthy judicial deference
towards presidential acts. Such deference came at a critical
time-when a pervasive culture of impunity within the country
had already begun to emerge under the executive
presidency.

Mallikarachchi v. Attorney-General[27]

The
petitioner in this case was a member of the Politbureau of
the Janatha Vimukthi Peramuna (JVP), which was a recognised
political party, and was elected a member of the District
Development Council of Colombo. He functioned in this
capacity until the President proscribed the JVP on 30th July
1983, under the provisions of the then Emergency Regulations
made under the PSO. The orders of proscription were
continued periodically through publications in the Gazette.
The petitioner alleged that the President was driven by mala
fides and aimed at eliminating opposition, and that the
petitioner and his fellow members were prevented from
contesting and putting forward candidates for election to
Parliament for the Kundasale and Trincomalee electorates.
The petitioner claimed that the proscription infringed his
fundamental rights under Articles 14(1)(a), (b), (c) and (d)
and Article 12(2) of the Constitution.[28] The petitioner
also made the Attorney-General a party to the
proceedings.

The Supreme Court held that, by Article 35(1)
of the Constitution, the President during his tenure of
office was absolutely immune from legal proceedings in his
official or private capacity. The immunity afforded by
Article 35(1) is personal to the President. Citing Justice
Ranasinghe in Satyapala v. The Attorney-General,[29] it was
held that the order of proscription is 'not an order made by
the President on the footing of any assignment of subjects
and functions in terms of the provisions of Article 44 of
the Constitution. It is not one done as a result of or
because of any such assignment of subjects and functions. It
is, on the other hand, an order made by the President under
and by virtue of a power vested in him by an express
provision of law, viz. Regulation 68 of the Emergency
Regulations, made under the provisions of section 5 of the
Public Security Ordinance...'

The Chief Justice at the
time, Chief Justice Sharvananda went on to explain the
rationale for the doctrine stating that 't is very necessary
that when the Executive Head of the State is vested with
paramount power and duties, he should be given immunity in
the discharge of his functions.'[30] Dealing with the
purpose of Article 35, he stated:

The principle upon which
the President is endowed with this immunity is not based
upon any idea that, as in the case of the King of Great
Britain, he can do no wrong. The rationale of this principle
is that persons occupying such a high office should not be
amenable to the jurisdiction of any but the representatives
of the people, by whom he might be impeached and be removed
from office, and that once he has ceased to hold office, he
may be held to account in proceedings in the ordinary courts
of law.[31]

Following this reasoning, Chief Justice
Sharvananda observed that the immunity of Head of State is
not unique to Sri Lanka and noted that the efficient
functioning of the executive required the President to be
immune from judicial process. It was accordingly
opined:

If such immunity is not conferred, not only the
prestige, dignity and status of the high office will be
adversely affected, but the smooth and efficient working of
the Government of which he is the head will be impeded. That
is the rationale for the immunity cover afforded for the
President's actions, both official and private (emphasis
added).[32]

Hence the Court held that these proceedings
could not have been instituted against the Attorney-General,
as he was not competent to represent the President in
proceedings not covered by the proviso to Article 35(3).
Moreover, it was held that Rule 65 of the Supreme Court
Rules requiring the Attorney-General to be cited as a
respondent in proceedings for the violation of Fundamental
Rights under Article 126 of the Constitution does not
contemplate the Attorney-General being made a sole party
respondent to answer the allegations in the petition. Such
inclusion merely serves the purpose of meeting the mandate
of Article 134, which states that the Attorney-General shall
be noticed and shall have the right to be heard in all
proceedings in the Supreme Court in the exercise of its
jurisdiction. Accordingly, the Court thought it fit to
dismiss the application.

Interestingly, Sharvananda C.J's
reasoning was that presidential immunity is needed for the
dignity of the office. Yet, this reasoning appears to be
questionable, as accountability to the courts, in which the
judicial power of the people is reposed, surely cannot
undermine the dignity of the executive. It is clear that
there is no incompatibility between answerability to courts
and 'dignity' in a democratic sense. In fact, no citizen is
less dignified by virtue of his or her answerability to the
judicial process. What the former Chief Justice possibly
meant by his sentiments on the loss of dignity was that a
spate of frivolous cases against the President would cause
unnecessary embarrassment to the office. Yet granting
blanket immunity on these grounds is an overreaction.
Frivolous cases could certainly be dismissed at a threshold
stage without burdening the President's office. However,
serious cases that credibly call into question the integrity
of the President or his or her decisions ought to be heard
by the courts. In fact, the integrity of the executive, and
indeed, the entire system of governance is contingent on
treating such allegations against the President seriously.
In these circumstances, the view that the actions of the
President are completely beyond the reach of the
courts-however serious the allegations against the President
are-encourages official acts of impunity, particularly where
those acts could be traced to some presidential power. As
history demonstrates, such impunity may be attributed to
precisely these foundational judicial
attitudes.

Karunathilaka v. Dayananda Dissanayake (Case
No. 1)[33]

The period of office of the Central, Uva,
North-Central, Western and Sabaragamuwa Provincial Councils
came to an end in June 1998. Following the period of
nomination and fixing a date for the main poll, the issue of
postal ballot papers was fixed for 4th August 1998. However,
by telegram dated 3rd August 1998, the respective returning
officers suspended the postal voting without adducing any
reason. The very next day, the President issued a
Proclamation under section 2 of the Public Security
Ordinance No. 25 of 1947 (PSO) and made an Emergency
Regulation under section 5 of the PSO, which had the legal
effect of cancelling the date of the poll. Thereafter, the
Commissioner of Elections took no steps to fix a fresh date
for the poll.

The Supreme Court, in a rare decision held
that the making of the Proclamation and the Regulation as
well as the conduct of the respondents in relation to the
five elections, clearly constituted 'executive action' and
the Court would ordinarily have jurisdiction under Article
126 of the Constitution. It was further held that Article 35
did not oust this jurisdiction, as it only prohibited the
institution of legal proceedings against the President while
in office. It did not exclude judicial review of an impugned
act or omission against some other person who did not enjoy
immunity from suit but relied on an act done by the
President in order to justify his conduct. Importantly, the
Court was of the view that it had the power, notwithstanding
the ouster clause in section 8 of the PSO, to review the
validity of the impugned Regulation. Accordingly, it was
opined that the impugned Regulation was not a valid exercise
of the power under section 5 of the PSO, as it was not an
Emergency Regulation. In any event, the Court held that the
impugned Regulation cannot be sustained as being for a
purpose set out in section 5 of the PSO, as the petitioner
had established that prima facie up to the end of July 1998,
there was no known threat to national security or public
order, and the respondents failed to show that even in
August 1998, there was any such threat.

The Court further
held that the suspension of the issue of postal ballot
papers was unlawful, arbitrary and mala fide, as it was done
with the knowledge that the impugned Proclamation and
Regulation would be made the next day and for a collateral
purpose. Hence the respondents were directed to fix new
dates for the issue of postal ballot papers and poll.

This
case is significant for two reasons. First, the Court was
prepared to grant a purposive interpretation to the
presidential immunity clause contained in the Constitution.
The Court effectively castigated public officials who sought
to rely on the concept of presidential immunity to acquire
immunity for their own actions. Hence the Court established
the principle that even when acting upon or in anticipation
of an act of the President, public officials were not immune
from suit. This principle is crucial for the purpose of
restricting official acts of impunity, since public
officials may no longer seek the broad cover of presidential
immunity to shield their actions. The principle may be
expanded to include unlawful acts purportedly committed
under Emergency Regulations notwithstanding the fact that
the President was responsible for the promulgation of the
Regulations. Second, the Court ignored the application of
the ouster clause in section 8 of the PSO. As discussed
later in this Study, this rare departure from a strict
application of ouster clauses has been crucial for the
occasional maintenance of checks and balances on the actions
of public officials.

Senasinghe v.
Karunatilleke[34]

This case concerned a fundamental rights
application before the Supreme Court, and related to the
assault and unlawful arrest of the petitioner by the Police
during a public demonstration held in 2001. The background
to the incident involved a presidential Proclamation under
Article 70 of the Constitution, which sought to prorogue
Parliament. Acting under Article 86 of the Constitution read
with section 2 of the Referendum Act No. 7 of 1981, the
President had also issued a Proclamation directing the
Commissioner of Elections to hold a Referendum of the people
on the need of a 'new Constitution'. The public
demonstrations were in response to these Proclamations and
the Referendum proposal. Acting under section 45 of the
Referendum Act, which banned processions during the period
in which a Referendum was scheduled to take place, the
Police sought to suppress the demonstrations.

The
petitioner established before Court that he was not a
participant in the demonstrations, but merely a bystander.
Yet the Police fired tear gas, which struck the petitioner.
Even after identifying himself as an attorney-at-law, police
officers shot the petitioner in the face with rubber bullets
and arrested him. He was thereafter released due to his
severe injuries for which he was hospitalized for two
weeks.

Justice Mark Fernando opined that the proposed
Referendum was invalid, as the question submitted to the
people was incapable of an intelligible and meaningful
answer.[35] Hence it was held that section 45 of the
Referendum Act under which the Police acted had no
application. Accordingly, it was concluded that the State
had violated the petitioner's fundamental rights under
Articles 11, 13(1) and 14(1)(h) of the Constitution. These
constitutional provisions respectively deal with torture or
cruel, inhuman and degrading treatment, arbitrary arrest and
the freedom of movement.

The Court also dealt with certain
other fundamental questions that are relevant to the present
Study. First, it held that it had the jurisdiction to review
the legal aspects of the Referendum, particularly as
Parliament, which could question the political aspects of
the Referendum, had been prorogued.[36] Second, the Court
dealt with the question of presidential immunity, as the
President herself had issued the two Proclamations that were
under scrutiny. Justice Fernando observed:

It is now
firmly established that all powers and discretions conferred
upon public authorities and functionaries are held upon
trust for the public, to be used reasonably, in good faith,
and upon lawful and relevant grounds of public interest;
that they are not unfettered, absolute or unreviewable; and
that the legality and propriety of their exercise must be
judged by reference to the purposes for which they were
conferred.[37]

The Court recalled that on a number of
previous occasions, it had reviewed the acts of the entire
Cabinet of Ministers inclusive of the President.[38] It was
further held that Article 35 of the Constitution, 'only
provides a shield of personal immunity from proceedings in
courts and tribunals, leaving the impugned acts themselves
open to judicial review.'[39] Thus the Court concluded that
it had jurisdiction to consider whether the Proclamation and
the Referendum proposal were in conformity with the
Constitution and the Referendum Act.[40] Accordingly, the
Court declared the Proclamation and the Referendum proposal
to be invalid.

This case clearly illustrates the scope for
judicial review of even presidential acts. Unfortunately,
the instances where the Court has been willing to challenge
presidential immunity remain exceptions to the general trend
of judicial deference towards the President's
decision-making authority. As demonstrable by later
jurisprudence in more uncertain times where the independence
of Sri Lanka's judiciary came to be the focus of
considerable public scrutiny, the norm has been that the
President's actions are simply not justiciable.

Victor
Ivan and Others v. Sarath Silva[41]

The petitioners in
this case alleged that the appointment of the 1st respondent
(a former Attorney-General, Sarath Silva) as the Chief
Justice by former President Chandrika Bandaranaike
Kumaratunga, pending a disciplinary inquiry, infringed their
fundamental rights under Articles 12(1) and 17. The
petitioners sought a declaration that the appointment is
null and void. The disciplinary proceedings were
contemplated on the ground of alleged misconduct concerning
interference with the proceedings in District Court Colombo
Case No. 17082/Divorce and acts or omissions in respect of
proceedings against a certain Magistrate. It was contended
that the 1st respondent was the 'beneficiary' of the
impugned appointment. Hence the appointment could be
questioned through the 1st respondent. The petitioners
relied on the dicta of Justice Sharvananda (as he was then)
in the Visuvalingam case[42] that Article 35 did not
preclude the courts from requiring any person who invoked
the President's act in his support to prove the legality of
such act. Hence it was argued that the burden was on the 1st
respondent to establish the lawfulness of the President's
act, notwithstanding immunity under Article 35, which was
personal to the President.

The Supreme Court unanimously
held that the conduct of the 1st respondent in holding
office as Chief Justice in consequence of his appointment by
the President under Article 170 of the Constitution did not
constitute 'executive or administrative action' within the
ambit of Articles 17 and 126 of the Constitution. Hence the
1st respondent could not have been 'invoking' the
President's acts to justify his holding of office.
Consequently, the petitioners had in effect challenged an
act of the President in respect of which they were
constitutionally precluded from challenging in a court of
law.

The judgement in this case also considered the effect
of legal precedents where the Supreme Court had struck down
Emergency Regulations promulgated by the President. In the
case of Joseph Perera v. Attorney-General,[43] a five judge
bench of the Supreme Court ruled that Regulation 28 of the
Emergency (Miscellaneous) (Provisions & Powers) Regulation
No. 6 of 1986 was ultra vires Article 15(7) of the
Constitution and therefore void. None of the judges in that
case, however, dealt with the issue of Article 35. The
previous case of Wickremabandu v. Herath[44] had already
held that Emergency Regulations could be declared void. As
discussed above, Justice Mark Fernando in the case of
Karunatilake v. Dayananda Dissanayake (1)[45] articulated
the reasoning through which Emergency Regulations
promulgated by the President could be struck down. He
opined:

What is prohibited is the institution (or
continuation) of proceedings against the President. Article
35 does not purport to prohibit the institution of
proceedings against any other person, where that is
permissible under any other law...I hold that Article 35
only prohibits the institution (or continuation) of legal
proceedings against the President while in office; it
imposes no bar whatsoever on proceedings (a) against him
when he is no longer in office, and (b) other persons at any
time...Immunity is a shield for the doer, not for the
act...It (Article 35) does not exclude judicial review of
the lawfulness or propriety of an impugned act or omission,
in appropriate proceedings against some other person who
does not enjoy immunity from suit; as, for instance, a
defendant or respondent who relies on an act done by the
President, in order to justify his own conduct . . . It is
the Respondents who rely on the Proclamation and Regulation,
and the review thereof by this Court is not in any way
inconsistent with the prohibition in Article 35 on the
institution of proceedings against the President.[46]

The
Court in Victor Ivan's case dealt with Fernando J's
sentiments in the following manner:

Justice Fernando takes
the matter beyond doubt when he clearly states that for such
a challenge to succeed, there must be some other officer who
has himself performed some executive or administrative act
which is violative of someone's fundamental rights, and
that, in order to justify his own conduct in the doing of
such impugned act, the officer in question falls back and
relies on the act of the President. It is only in such
circumstances that the parent act of the President may be
subjected to judicial review.[47]

The Court sought to
distinguish the two cases by emphasizing that the 1st
respondent had not committed any executive or administrative
act while relying on a particular act of the President.
Hence the Court was precluded from reviewing the President's
act of appointing the 1st respondent as Chief Justice. This
line of reasoning simply nullified the remarkable creativity
demonstrated by earlier judicial precedents[48] through
which Justice Fernando was prepared to engineer the review
of decisions effectively flowing from the President. The
Court in this case instead re-established the fundamental
principle that the President's acts are beyond review and
that even those that benefit from such acts cannot be
questioned in a court of law. In the present case, the
alleged misconduct of a high official was shielded by the
fact that the President had now appointed him as Chief
Justice. Hence, the former Attorney-General was exculpated
by the Court even for interfering with the administration of
justice, purely due to the Court's reluctance to review a
presidential decision.

The resulting position was simply
that the former Attorney-General (later appointed Sri
Lanka's Chief Justice) was afforded the space to act with
complete impunity. The case remains a classic example of how
presidential immunity often lays the practical groundwork
for acts of impunity by other public officials, departing
from earlier jurisprudence, which construed the reach of
that immunity in commendably strict terms.

Senarath v.
Kumaratunga[49]

In contrast to the former decision, this
case was decided at a period when the earlier amity between
the former Chief Justice Sarath Silva and former President
Chandrika Bandaranaike Kumaratunga had run its course. The
matter involved an alleged infringement of Article 12(1)
through the unlawful, unreasonable, arbitrary and mala fide
executive action of the 1st respondent, Chandrika
Bandaranaike Kumaratunga who at the material time had been
President of the country. The case was filed soon after the
1st respondent ceased to hold office. The alleged conduct
involved securing to herself inter alia a free grant of
developed land and premises from which two public
authorities were ejected, purportedly under the President's
Entitlement Act No. 4 of 1986.

Then Chief Justice Sarath
Silva held that the provisions of the President's
Entitlement Act were worded in such a manner that only a
former President was eligible for the entitlements in the
Act. Hence an incumbent President would not have occasion to
decide on his or her entitlements. Moreover, it was held
that where the Executive, being the custodian of the
People's power, abuses a provision of the law in the
purported grant of entitlements under such law, and secures
benefits that would not come within the purview of such law,
it is in the public interest to plead a violation of the
right to equality before the Court. The Court further
concluded that a denial of locus standi in circumstances
where there has been a brazen abuse of power to wrongfully
gain benefit from public resources would render the
constitutional guarantee of equality before the law
meaningless.

The Court thus allowed the application and
issued a declaration that the fundamental rights of the
petitioners, guaranteed by Article 12(1), had been infringed
by executive action in the purported grant of benefits to
the 1st respondent contrary to the provisions of the
President's Entitlements Act. Hence the case furnishes
authority for the ability to sue a President for acts
committed during his or her term of office after the end of
such term of office.

The Water's Edge Case[50]

The
petitioners in this case filed a fundamental rights
application in the Supreme Court in the public interest. The
petitioners alleged that their fundamental rights were
violated due to the acquisition of the impugned land for a
purported public purpose. However, it was found that the
land was sold to a private entrepreneur to serve as an
exclusive and private golf resort. This seminal case remains
important with respect to the Court's expansive analysis of
the public trust doctrine. Perhaps the jurisprudential
contribution that is most relevant to this Study is the
Court's examination of presidential immunity.

The Court
observed that the former President (Chandrika Bandaranaike
Kumaratunga) had acted in excess of her power as Head of the
Executive as well as Finance Minister during the material
period in which the land transactions took place. It was
revealed that the President herself was responsible for
issuing the Cabinet Memorandum that set in motion the entire
land transaction. Hence the Court thought it fit to hold the
former President responsible for the corrupt transaction and
ordered her to pay compensation of Rupees three million to
the State. Justice Shiranee Tilakawardane, writing for the
Court, observed:

eing a creature of the Constitution, the
President's powers in effecting action of the Government or
of state officers is also necessarily limited to effecting
action by them that accord with the Constitution. In other
words, the President does not have the power to shield,
protect or coerce the action of state officials or agencies,
when such action is against the tenets of the Constitution
or the Public Trust, and any attempts on the part of the
President to do so should not be followed by the officials
for doing so will (i) result in their own accountability
under the Public Trust Doctrine, betraying the trust of good
governance reposed in them under the Constitution by the
People of this nation, in whom sovereignty reposes and (ii)
render them sycophants unfit to uphold the dignity of public
office.[51]

Crucially, the Court also pronounced on the
applicability of the doctrine of presidential
immunity:

The expectation of the 1st Respondent as a
custodian of executive power places upon the 1st Respondent
a burden of the highest level to act in a way that evinces
propriety of all her actions. Furthermore, although no
attempt was made by the 1st Respondent to argue such point,
we take opportunity to emphatically note that the
constitutional immunity preventing actions being instituted
against an incumbent President cannot indefinitely shield
those who serve as President from punishment for violations
made while in office, and as such, should not be a
motivating factor for Presidents-present and future-to
engage in corrupt practices or in abuse of their legitimate
powers (emphasis added).[52]

In light of the fact that
former President Kumaratunga had betrayed the public trust,
the Court found no reason to hold that any remnants of
previous immunity granted to her should hinder full judicial
scrutiny of her actions. In light of this judgment, which
later the Supreme Court refused to review,[53] it appears
that the pervasive nature of presidential immunity is, after
all, capable of being controlled. Hence Presidents who seek
to abuse their power may no longer assume that they enjoy
immunity for life. Such a realization may form the necessary
basis for preventing immunity from transforming into
impunity with the ease at which it has taken place during
the past few decades under the present Constitution. Yet
cases such as the Water's Edge case cannot be genuinely
regarded as trend-setting interventions of the Court. Such
cases, unfortunately, remain anomalies or in a harsher
sense, products of the peculiar political environment of the
day.

What may be gleaned from the foregoing analysis
is that, while Article 35 provides absolute personal
immunity to the President, it only shields the President
during his or her term. Hence acts committed during such
tenor may later be called into question. A number of other
cases may be cited where a former President's acts have been
struck down in proceedings before the Supreme Court.
Examples include the case of Singarasa v.
Attorney-General[54] where the former President's
ratification of the Optional Protocol to the International
Covenant on Civil and Political Rights was held to be ultra
vires; the case of Wijesekara v. Attorney-General[55] where
a former President's act of merging the Northern and Eastern
Province through a Proclamation made under the Emergency
Regulations was held to constitute a continuing violation of
the rights of the petitioners who were from the Eastern
province; and the case of Senarath v. Kumaratunga[56]
discussed above. Therefore, anyone invoking the act of a
President to justify his actions is imposed with the burden
of proving the validity of the President's
acts.[57]

However, these trends must be understood in its
proper context. In respect of Singarasa v.
Attorney-General,[58] Wijesekara v. Attorney-General[59] and
Senarath v. Kumaratunga[60] the factual context involved
former President, Chandrika Bandaranaike Kumaratunga and
former Chief Justice Sarath Silva. The former Chief Justice
had already developed a penchant for undermining the acts of
the former President, as animosity had steadily grown
between the two high officials, in contrast to the amity
that existed during the first several years of the former
Chief Justice's term. In later years, the former Chief
Justice had struck down several of the initiatives of the
Kumaratunga government, and had specifically targeted the
acts of the former President. Hence the personal animosity
that existed between the Court and the former executive and
the clear political ambitions of the former Chief Justice
simply cannot be ignored when examining these
cases.[61]

Consequently, rather than an actual reversal of
the trend of judicial deference towards the executive, these
cases are more likely to be seen as historically and
contextually explainable anomalies. Some of the decisions
handed down by the Supreme Court during this period were
indeed legitimately critiqued as judicial trespassing on the
executive sphere.[62]Abrupt and temperamental shifts of
initial judicial empathy and subsequent judicial hostility
towards the executive became a hallmark of the Sarath Silva
Court (1999-2009) and were an unprecedented development in
the history of Sri Lanka's Supreme Court. This trend
continued during the remaining years of the former Chief
Justice's term, following President Kumaratunga's successor,
the incumbent President Mahinda Rajapaksa being elected to
presidential office.

With the departure of former Chief
Justice Sarath Silva in 2009, these temperamental incursions
into the executive sphere, which was characterised more by
the personal motivations of the former Chief Justice rather
than a commitment to the judicial role in the cause of
constitutional governance, came to a predictable halt. In
the face of an Executive President who moulded his office,
particularly in his second term, on the strength of the
victory of his administration over the LTTE, Sri Lanka's
judiciary retreated to the shadows of a timorous reluctance
to openly challenge executive actions except in very few
cases and that too, more in the role of a conciliator rather
than as a strong check on abuse of executive power.

Some
Comparative Illustrations

The fluctuating judicial
attitude towards immunity in Sri Lanka may be compared with
trends in the United States in order to give meaning to the
idea that law, and not the person of the President, is the
ultimate 'ruler' within the system. It must be noted at the
outset that, unlike the Sri Lankan Constitution, the U.S.
Constitution does not provide for presidential immunity. The
concept of presidential immunity in the U.S. context has
evolved over time through judicial reasoning. Hence a survey
of the U.S. case law on the subject may be undertaken for
comparative purposes only while bearing in mind the variance
in context.

In the case of Clinton v. Jones,[63] the
Supreme Court considered President Bill Clinton's alleged
sexual misconduct, which took place prior to taking up
office. The Court unanimously held that litigation should
not be delayed until the conclusion of the presidential term
and distinguished the case of Nixon v. Fitzgerald.[64] In
Fitzgerald, the President had already left office, so the
question of 'distraction' was limited. Thus the main
argument in favour of immunity was that the system should
not chill the President's exercise of power by presenting
the risk of subsequent litigation. In a split decision of
5-4, the Court ruled in favour of absolute immunity.
However, the Court in Jones sought to depart from the
previous ruling by holding that presidential immunity cannot
extend beyond the scope of any action taken in an official
capacity. It was held that such a reading of immunity did
not violate the separation of powers doctrine, as the
outcome of the case would have no bearing on the scope of
the official powers of the executive branch. Hence it was
concluded that there would be no misallocation of judicial
or executive power when considering questions that relate
entirely to the unofficial conduct of the individual who
happens to be the President. More specifically, the
reasoning in Jones provides an important counteraction to
the sentiment that the answerability of the President to the
courts undermines the dignity of the office.[65] The U.S.
Supreme Court in Jones was of the firm opinion that defence
of civil litigation would not unnecessarily burden the
President in terms of time, nor affect the performance of
his functions.

The recent judicial approach in the U.S.
towards scrutinizing the President's private actions even
while he remains in office sends a strong and clear message
about the limits of power. It confirms that no
individual-not even the President-is above the law. Hence
even the President must be held accountable to the courts
and ultimately to the judicial power of the people. The
proper framework for defining the relationship between the
judiciary and the executive was discussed at length in the
case of Youngstown Sheet & Tube Co. v. Sawyer.[66] This case
concerned the question as to whether the courts could review
the President's official acts. The case involved the
President's ordering of the Secretary of Commerce to take
possession and operate the nation's steel mills following
the failure of steel mill owners and workers to reach an
agreement on a new wage contract during the Korean War. The
issue before the Supreme Court was whether the President was
acting within his constitutional powers when he issued an
order to take possession of and operate steel mills. Hence
the main question was whether the President's actions
amounted to unconstitutional 'lawmaking' or whether it was a
legitimate exercise of power implied in the aggregate power
of the President arising from a necessity to avoid national
catastrophe.

In a celebrated concurring opinion, Justice
Robert Jackson presented an interesting framework in
determining the scope for judicial review of presidential
acts.[67] He opined that presidential power is not fixed but
fluctuates in relation to Congress. If Congress sanctions a
presidential act, the strongest presumptions and the widest
latitude of judicial interpretation would support such an
act. If the act is an independent act that is in an
ambiguous area, which Justice Jackson regarded as the 'zone
of Twilight', there would be concurrent authority, and the
act can be legitimate only by reason of the inertia,
indifference or acquiescence of Congress. The test of power
and the scope of judicial review in such cases would depend
on the imperatives of the events. Finally, if the act is
contrary to what Congress has laid down i.e. there is no
express or implied authority given by Congress, then the act
falls under the President's own constitutional powers minus
any congressional powers over the matter. In such a context,
the courts must consider this with caution for 'what is at
stake is the equilibrium established by our constitutional
system.'[68] The majority of the Supreme Court ultimately
held that the President did not have unrestricted power to
seize private property in emergencies.

The U.S. experience
gives credence to the notion that constitutional
'equilibrium' must be the governing factor that informs any
court of its limits in reviewing presidential acts. Courts
simply cannot neglect their ultimate allegiance to the
Constitution. Hence it is a notion of constitutionalism that
must prevail over presidential immunity. It is only through
a transformation in judicial attitudes towards the
executive, towards the courts' own limits of power and
towards the supremacy of the Constitution that impunity
flowing from presidential acts could be effectively
curtailed.

Statutory Immunities

Apart from the
overarching influence of presidential immunity on the
culture of impunity in Sri Lanka, several other statutory
provisions within the legal framework provide (or provided)
an additional basis for granting immunity to state
officials. Some of these key provisions are discussed in
this section.

The Indemnity Act[69]

This Act was passed
within a specific context to provide indemnity to
politicians, service and police officers and any person
acting in good faith under the authority of a direction of a
Minister, Deputy Minister or a person holding office. It was
an early precursor to widespread indemnity legislation,[70]
and was made applicable between 1st to 31st August 1977 and
thereafter extended to 16th December 1988 by the Indemnity
Amendment Act No. 60 of 1988.[71]

The salient provisions
of the Act are found in section 2:

No action or other
legal proceeding whatsoever, whether civil or criminal,
shall be instituted in any court of law for or on account of
or in respect of any act, matter or thing, whether legal or
otherwise, done or purported to be done with a view to
restoring law and order during the period August 1, 1977, to
the relevant date, if done in good faith, by a Minister,
Deputy Minister or person holding office under or employed
in the service of the Government of Sri Lanka in any
capacity whether, naval, military, air force, police or
civil, or by any person acting in good faith under the
authority of a direction of a Minister, Deputy Minister or a
person holding office or so employed and done or purported
to be done in the execution of his duty or for the
enforcement of law and order or for the public safety or
otherwise in the public interest and if any such action or
legal proceeding has been instituted in any court of law
whether before or after the date of commencement of this Act
every such action or legal proceeding shall be deemed to be
discharged and made null and void.

The Indemnity Act was
met with severe criticism due to its encouragement of public
officials to act with absolute impunity.[72]More recently,
the UN Secretary General's Panel of Experts on
Accountability in Sri Lanka described the Act as a law that
'greatly weakened the State's duty to pursue serious
violations of rights.'[73] The defence advanced by
governments of the day was that the provisions of the Act
were never actually implemented. Yet the message that the
law conveyed to the security apparatus including the
military and the police with regard to the laxity with which
human rights abuses would be viewed, was unmistakable. As
discussed later, laws such as the Indemnity Act provided an
unhealthy precedent that was carried forward by subsequent
anti-terrorism and emergency laws.

The Penal Code and the
Criminal Procedure Code

Two provisions in the Penal Code
No. 11 of 1887 and the Criminal Procedure Code Act No. 15 of
1979 are relevant to this discussion.

Section 69 of the
Penal Code allows for the defence of mistake of fact in good
faith under its chapter on 'General Exceptions' to
liability. Interestingly, the first illustration contained
in the section refers directly to a military official's
action in good faith.

A, a soldier, fires on a mob by the
order of his superior officer in conformity with the
commands of the law. A has committed no offence.

Similar
latitude is provided by section 97(2) of the Criminal
Procedure Code in relation to the provisions dealing with
unlawful assembly. The section reads:

(a) A Magistrate,
Government Agent, police officer or member of the Sri Lanka
Army, Navy or Air Force or any other person acting under
this Chapter in good faith; and

(b) A member of the Sri
Lanka Army, Navy or Air Force doing any act in obedience to
any order which under military law he was bound to
obey,

Shall not be liable in civil or criminal proceedings
for any act purported to be done under this Chapter.

This
provision was interpreted in the case of Bernard Soysa v.
The Attorney-General& Others.[74]The case involved the
holding of a Sathyagraha near the Dalada Maligawa
(translated to mean the Temple of the Sacred Tooth Relic),
which is an important public place of worship. The protest
was considered to be unlawful, which purportedly warranted
the intervention of the Police in the interests of public
order. In the fundamental rights case filed by the
protesters, the Supreme Court was of the view that the
Police were in fact entitled in terms of the duties cast on
them by the Criminal Procedure Code and the Police Ordinance
No. 16 of 1865 to take steps to disperse the protestors. The
Court specifically referred to the provisions of section
97(2) of the Code, which were held to grant to a police
officer, exercising such power in good faith, immunity from
civil or criminal proceedings for an act purported to be
done under the relevant chapter of the Criminal Procedure
Code.[75] Hence it was concluded that the Police action was
justified and that there was no infringement of the
fundamental rights of peaceful assembly and
expression.

Though the Criminal Procedure Code does not
specifically refer to good faith clauses in relation to any
other specific offence, the concept of good faith in
relation to law enforcement is also found in section 92 of
the Code. The relevant section reads:

(1) There is no
right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by a public servant
acting in good faith under color of his office, though that
act may not be strictly justifiable by law.

(2) There is
no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by the direction of
a public servant acting in good faith under colour of his
office, though that direction may not be strictly
justifiable by law.

The above provisions restricts the
right of self defence against an act of a public servant or
a person acting on the direction of a public servant, where
the public servant acts in good faith, notwithstanding the
fact that the act may be unlawful. The broad scope of this
section appears to permit a public servant to engage in
certain unlawful activities falling short of those that
cause the apprehension of death or grievous hurt, provided
that the defence of good faith is invoked.

Both the above
statutory provisions are relatively unambiguous in terms of
the broad indemnity they afford public officers. As
discussed later in this section, these provisions have been
in issue in instances where military officials have been
accused of crimes and human rights violations.

Public
Interest Privilege

The Statutory Basis for Public Interest
Privilege

Sections 121 to 131 of the Evidence Ordinance
No. 14 of 1895 incorporate the principle that although a
witness may generally be compelled to give evidence, that
witness may still refuse to answer certain questions on the
well recognised grounds of public policy, professional or
personal privilege. This principle goes so far as to state
that even in instances where the witness may be prepared to
do so, he or she will not be permitted to do so. This
provision too appears to have profound significance with
respect to the indemnification of public
officials.

Certain grounds of exclusion, such as
information for detection of crime, official communications
and professional communications are generally accepted as
exceptions to the fundamental principle that parties to
litigation have a right to bring before the court, all
relevant evidence and to call on others to produce that
evidence. However, the inclusion of affairs of state within
this category of excluded evidence in relation to criminal
prosecutions invites brief discussion as to the extent to
which this privilege may be resorted to, in order to render
prosecutions for serious human rights abuses,
nugatory.

Judicial Thinking on Public Interest
Privilege

This section refers to the relevant English
legal principles[76] in order to demonstrate that the
applicable Sri Lankan judicial thinking, in recent times,
has been demonstrably conservative.

The doctrine of public
interest privilege emanated from the concept of 'crown
privilege' in the English law. It is has been long-accepted
that the British Crown could make an application to a court
for the purpose of suppressing evidence in matters of
litigation in the public interest, largely if not totally,
upon considerations flowing from national security. Thus the
principle had assumed the tag 'crown privilege.' In Conway
v. Rimmer[77] the House of Lords held that the Court had the
right (in effect imposing an obligation on Court) to
investigate the Crown's claim for suppression and determine
whether it should be allowed or not, if on a balance, the
need for secrecy was less than the need to ensure justice to
the litigant.

This case encapsulated the rejection by the
English courts of the principle of executive fiat, based as
it were on a 'hands off policy.' This development reflected
judicial thinking in the United States where in 1953, in the
case of US v. Reynolds,[78] the U.S. Supreme Court laid down
the principle that 'a complete abandonment of judicial
control (re: executive claim) would lead to intolerable
abuses.'[79] In Conway v. Rimmer,[80] the judiciary
articulated the principle that the courts will investigate
the Crown's claim to secrecy and suppression of evidence. It
was also opined that while the public interest requires that
justice should be done (without withholding evidence), that
very same public interest requires not only the Crown but
also, a party to litigation to take up the plea directed at
suppression of evidence. Thus the concept of 'crown
privilege' came to be replaced by the expression 'public
interest privilege.' The resulting position in English
jurisprudence was as follows;

The Crown as well as a
litigant could take up the plea of privilege to shut out
evidence in litigation; and The Court will investigate into
the plea, whether taken up by the Crown or by a litigant in
the context of Court proceedings.

This expansion was taken
further in R v. Lewes Justices ex parte Home Secretary[81]
when the term 'public interest immunity' was upheld as a
basis for disallowing information required from the
government with regard to a defendant in a criminal
prosecution. Thus, the transition from a plea of privilege
initially perceived and/or conceived as the Crown's
prerogative extended to a private litigant or party to
assert the same in the public interest, culminating in the
now established concept of immunity in the public
interest.

In Commissioner of Police, the Metropolis v.
Locker,[82]the Court enunciated the principle that, the
existence (or otherwise) of public interest immunity would
depend on whether the Court is satisfied that the nature and
status of the procedure in which the class of documents was
generated is of a type to which the plea should apply. The
Court laid down the principle that 'whatever the class of
documents in issue, it is the court that would ultimately
arbitrate and decide on it.'[83] The Case of Owen McCoughty
and Pat Grew[84] must be regarded as a seminal decision in
the context of the scope and content of the doctrine of
public interest privilege and immunity. In this case, it was
held that the Police and the Ministry of Defence are under a
duty to disclose all documents to the Coroner and then it is
for the Coroner to assess their relevance. At that stage, if
the Coroner is aware of any public interest concerns that
the Police or Ministry of Defence may have in relation to
the disclosure of the documents, he or she may present
public interest certificates setting out their concerns. If
they do so, it will then fall to the Coroner to determine
the balance for and against disclosure.

The previous legal
position in the United Kingdom pertaining to the
conclusiveness of executive determinations on matters of
privilege stood rejected in this case. Instead the Court
ruled that the Police and the Ministry of Defence are
charged with the duty to disclose all relevant documents
pertaining to a case to the Coroner and that the Coroner was
empowered to assess their relevance in relation to the
public interest concerns of the executive authorities
against disclosure. If the Coroner decides that the
information sought to be withheld by the Police or the
defence authorities do not relate to public interest
concerns or that they in fact do relate to the said
concerns, these determinations would be amenable to judicial
review. In either of those eventualities, the salutary
feature would be that the Court would be the final
arbitrator on the matter.

Even prior to this decision, in
ex parte Willey (1995),[85] the English Appellate Court
itself held that, where a Minister examines a document which
(in his opinion) is subject to public interest immunity and
considers that the overall public interest does not favour
its disclosure, or, is in doubt as to whether to disclose
the information, then the Minister should put the matter to
the Courts. It is therefore the Courts, and not the
executive, which determines whether a public interest
certificate is necessary. In the two consolidated cases of
Regina v. H and Regina v. C,[86] the trial judge had held
(at a preparatory hearing), that in order to comply with
Article 6 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR)[87] and a
decision of the European Court of Human Rights,[88] special
independent counsel should be appointed to represent the
interests of the defendants in forthcoming ex parte public
interest proceedings. The Court of Appeal allowed the appeal
preferred by the Crown from the trial judge's ruling.[89]
The aggrieved defendants appealed against the Court of
Appeal ruling in an attempt to have the trial judge's
decision restored. Dismissing the appeals, the House of
Lords held that the appointment of Special Counsel to
represent a defendant in an ordinary criminal trial as an
advocate in matters concerning public interest immunity was
a course of last, never the first, resort. Such an
appointment should not be ordered unless and until the trial
judge was satisfied that overriding requirements of fairness
to the defendants required such a course of action. It was
further held that the trial process must be viewed as a
whole and a defendant's right had to be exercised in the
framework of the administration of the criminal law ensuring
fairness to all sides, namely the position of the accused,
the victim and his or her family, and the public.

What is
of concern in this instance, however, is that a portion of
the Court's ruling concerned disclosure or withholding
information in a criminal prosecution. The House of Lords
referred to 'the Golden Rule' wherein fairness ordinarily
requires that, any material held by the prosecution which
weakens its case or strengthens that of the defendant, if
not relied on as part of its formal case against him, should
be disclosed to the defence.[90] This decision provides an
illuminating insight as to what could be interpreted as
'public interest' justifying non-disclosure of material in
the prosecution's hands:

Those most regularly engaged in
the effective investigation and prosecution of serious
crime, which might involve resort to informers and
undercover agents, or the use of scientific or operational
techniques, which could not be disclosed without exposing
individuals to the risk of personal injury or jeopardising
the success of future operations;

In such circumstances,
some derogation from the golden rule of full disclosure
might be justified;

But such non-disclosure had to be
always the minimum necessary to protect the public interest
in question and could never imperil the overall fairness of
the trial.

Examining these principles in the context of
the Sri Lankan law, the relevant provisions of the Evidence
Ordinance has been the subject of a number of cases. Section
123 of the Ordinance stipulates an absolute prohibition
against disclosing unpublished records relating to affairs
of State, while section 124 provides that no public officer
shall be compelled to disclose communications made to him in
official confidence when he considers that the public
interest will suffer thereby. The legal principles are
therefore clear. The privilege applies to an unpublished
official record, not published records (following from
English law). Moreover, affairs of the State have been
interpreted broadly to include the business of the State
including communications in regard to international
diplomacy, minutes of public servants and state secrets.[91]
Further, the Court has the power to inspect the document to
satisfy itself that the essentials of privilege are
satisfied under section 124.[92]

In the comparatively
recent decision of Sri Lanka's Court of Appeal in Vandergert
v. Zurfick,[93] a plea of privilege was put forward by the
Secretary to the Ministry of Foreign Affairs in relation to
what was claimed to be part of an unpublished official
record pertaining to the affairs of State. This plea had
been rejected by the District Court, which concluded that
the document does not relate to affairs of State or to the
public interest. The Court had ordered its disclosure on the
basis that this was necessary for the administration of
justice.In appeal, the decision was reversed by the Court of
Appeal, which held problematically[94] that where privilege
is claimed, the public officer will be the sole judge of
whether disclosure will be allowed or not and the courts
have no discretion in this regard. Similarly, the right of
judicial inspection was held to be relinquished if the
document relates to the affairs of State. Hence it was
judicially opined that the Sri Lankan law does not permit
judicial activism in the manner evinced in the English and
the Indian courts.

This decision exemplifies the
classically conservative, or indeed excessively pro-State,
thinking of the Sri Lankan judiciary in relation to the
concept of public interest privilege in recent years. Even
though this plea has not been taken in prosecutions of grave
human rights violations, the judicial upholding of the plea
in the wake of Vandergert v Zurfick[95] appears to be a
grave possibility.

Conclusion: A Return to the
Juridical

The normative shift that occurred in Sri Lanka
after the 1978 Constitution has resulted in a skewed view of
presidential immunity, which appears to be at odds with the
basic tenets of a 'rule of law based' state. The overarching
impact of presidential immunity on our legal system is
further supplemented by the application of several
regressive laws that grant immunity to other public
officials. It appears that both presidential immunity and
other indemnity provisions within the law contribute
significantly towards the culture of impunity in Sri Lanka.
While a state's obligation to investigate violations of
human rights and punish perpetrators is basic, a
constitutional cum statutory framework that runs counter to
that basic norm paves the way for this culture of
impunity.

In light of the above, the provisions in the
present Constitution and statutory law that form the basis
for official immunity must be narrowly interpreted to
reflect greater consistency with the rule of law. Yet such
an approach is wholly contingent on the independence and
integrity of the judiciary as well as the competence of
individual judges. It is also contingent on a transformation
of the normative underpinnings of the Sri Lankan legal
system. Such a transformation requires a 'juridical'
approach, which is foundational to the rule of law. If the
recognition of the 'juridical' is displaced by the
'politico-administrative', then the very foundation of the
law is undermined. On the one hand, 'juridical' may be
defined as 'relating to judicial proceedings or to the
administration of justice.'[96] Hence the judicial system is
composed of those who are expected to gather information,
analyze it and come to findings on the basis of legal
notions and 'the manner in which the law is practised.'[97]
The essence of the juridical is therefore this allegiance to
the law and its processes. On the other hand, what is meant
by 'politico-administrative' is the manner of action of the
executive as influenced by political interests.

It is
imperative to understand that those who have obligations
under the juridical and those who have obligations under the
politico-administrative must think and act distinctly and
separately.[98] In fact, the doctrine of separation of
powers is founded on such thinking. A good example of this
need is reflected in the case of arrest and detention. While
the executive is likely to deal with arrest and detention
from the perspectives of efficiency and expediency, the
judiciary is compelled to uphold the rights of individuals
and personal freedom when considering the same issue.[99] In
the ensuing clash between notions of the juridical and the
politico-administrative, the executive may wish to modify
the law so as to displace juridical notions and to replace
them with administrative policies and considerations.[100]
If the executive succeeds in this endeavour, the juridical
would be replaced with the politico-administrative.

The
judiciary's response to such endeavours depends largely on
the level of independence it enjoys. Though it is tempting
to blame the judiciary in Sri Lanka for contributing to the
perpetuation of impunity in the country, the lack of
judicial independence must be understood as a systemic
problem. This problem entails flaws relating to the legal
education system, the integrity of the process of
appointments and the security of judicial tenure. If the
independence of the judiciary is in fact compromised as a
result of such systemic flaws, it is likely that the
judiciary will act in compliance with executive will. In
this context, the juridical sphere would be displaced by the
political logic of the administration.

What appears to be
at the heart of the challenge faced in Sri Lanka is this
apparent transformation of the juridical to the
politico-administrative. As emphasized in this paper, this
transformation originates from an over-mighty executive
characterised by the constitutionally protected immunity of
the President. The result is an entrenched culture of
impunity. It is our view that constitutional reforms
pertaining to the President's power, the repeal of
post-emergency draconian laws and proactive measures to
restore the independence of the judiciary are necessary to
address the problem of impunity in Sri Lanka. If the
hypothesis of this paper-that impunity originates from broad
constitutional and statutory immunities, and that its
curtailment is contingent on a proactive judiciary-is
correct, these reforms must be introduced swiftly and
implemented seriously. In such event, salvaging the damaged
reputation of Sri Lanka's legal system and delivering
justice to victims of gross human rights violations may
cease to be unattainable goals.

** Attorney-at-law; Regional
Coordinator & Lecturer, Master of Human Rights and
Democratization (Asia-Pacific) Programme, University of
Sydney & University of Colombo; Visiting Lecturer,
University of Peradeniya; senior research analyst, Verite
Research

***Attorney-at-law & independent
researcher.

[1] Paul G. Lauren, From Impunity to
Accountability: Forces of Transformation and the Changing
International Human Rights Context, in Ramesh Thakur and
Peter Malcontent (eds.) From Sovereign Impunity to
International Accountability: The Search for Justice in a
World of States, United Nations, (2004), [‘Lauren, From
Impunity to Accountability’] at 16.

[2] Ibid. at
17.

[3] Ibid. at 27.

[4] Updated Set of Principles for
the Protection and Promotion of Human Rights through Action
to Combat Impunity, adopted 8 February 2005,
E/CN.4/2005/102/Add.1, at 6.

[5] For a concise review of
the literature on the subject, see Marco Fanara, Prosecution
or Impunity? Is there an Alternative? United Nations
Mandated University for Peace, available at
http://www.monitor.
upeace.org/archive.cfm?id\_article=799.

[9] For a more in-depth
analysis of Martha Minow’s arguments in particular, see
Stephan Parmentier, Global Justice in the Aftermath of Mass
Violence: The Role of International Criminal Court in
Dealing with Political Crimes (2003), at 205.

[10] Luc
Huyse, Justice after Transition: On the Choices Successor
Elites Make in Dealing with the Past, in : A. Jongman (ed.),
Contemporary Genocides (1996), at p.4.

[11] Orentlicher,
Settling Accounts Revisited, op. cit. at p.16.

[12] See
United Nations, Charter of the United Nations, 24 October
1945, 1 UNTS XVI, available at:
http://www.unhcr.org/refworld/docid/3ae6b3930.html, Chapter
VII, which deals with ‘Action with Respect to Threats to
the Peace, Breaches of the Peace and Acts of
Aggression.’

[13] See Kofi Annan, as cited in
www.ictr.org, 31 October 2001 cited in Lauren, From Impunity
to Accountability, at p.33.

[15]
See Lakshman Gunasekera, Freedom of Expression and Media
Freedom, in Law & Society Trust, Sri Lanka: State of Human
Rights 1998 (1998), at 105. Also see Kishali Pinto
Jayawardena, Freedom of Expression and Media Freedom in E.
Nissan, (Ed.), Sri Lanka, State of Human Rights 2003, Law &
Society Trust (2003), at p.11.

[16] See Act No. 27 of
1997.

[17] Act No.17 of 1980.

[18] See Article 121 of
the Constitution. Article 121(1) provides: ‘The
jurisdiction of the Supreme Court to ordinarily determine
any such question as aforesaid may be invoked by the
President by a written reference addressed to the Chief
Justice, or by any citizen by a petition in writing
addressed to the Supreme Court. Such reference shall be
made, or such petition shall be filed, within one week of
the Bill being placed on the Order Paper of the Parliament,
and a copy thereof shall at the same time be delivered to
the Speaker. In this paragraph “citizen” includes a
body, whether incorporated or unincorporated, if not less
than three-fourths of the members of such body are
citizens.’

[19] See Article 35(1) of the Constitution
and section 8 of the PSO.

[20] Joseph Perera v.
Attorney-General [1992] 1 Sri.L.R 199; Wickremabandu v.
Herath [1990] 2 Sri.L.R. 348. More recently, see Centre for
Policy Alternatives v. Defence Secretary and Others S.C.
(F.R.) 351/08, Supreme Court Minutes, 15 December 2008 (per
S.N. Silva CJ.). The case sought to challenge the proposed
ERs of 2008. The Supreme Court granted leave to proceed
despite the fact that the President had promulgated the
impugned ERs. The Regulations were subsequently withdrawn,
so the issue of presidential immunity in relation to the
promulgation of the relevant ERs was not thoroughly examined
by the Court.

[21] Ibid.

[22] [1983] 1 Sri.L.R.
203.

[23] According to the Seventh Schedule to the
Constitution and under Article 157A and Article 161(d) (iii)
of the Constitution, the judges of the Supreme Court and
Court of Appeal are required to make the following oath:
‘I, … do solemnly declare and affirm swear that I will
uphold and defend ‘the Constitution of the Democratic
Socialist Republic of Sri Lanka and that I will not,
directly or indirectly, in or outside Sri Lanka, support,
espouse, promote, finance, encourage or advocate the
establishment of a separate State within the territory of
Sri Lanka.’

[24] [1983] 1 Sri.L.R, at 210.

[25]
Ibid.

[26] [1984] 2 Sri.L.R. 45.

[27] [1985] 1 Sri.L.R.
74.

[28] Article 14(1) of the Constitution provides:
‘Every citizen is entitled to (a) the freedom of speech
and expression including publication; (b) the freedom of
peaceful assembly; (c) the freedom of association; (d) the
freedom to form and join a trade union.’ Article 12(2)
provides: ‘No citizen shall be discriminated against on
the grounds of race, religion, language, caste, sex,
political opinion, place of birth or any such
grounds.’

[41] [2001] 1 Sri.L.R. 309.Piquantly, then Chief
Justice Sarath Silva, in constituting the Supreme Court
Bench to hear the very case against him (in a clear conflict
of interest) nominated a Bench including judges who were
junior in rank thereby bypassing the most senior judges of
the Supreme Court. This was just one example of judicial
bias in the composition of Benches during this period; for a
more detailed analysis, see

[57] The issue of presidential immunity also
received attention in cases such as Public Interest Law
Foundation v. the Attorney-General C.A. Application No
1396/2003, Court of Appeal Minutes, 17 December 2003. This
case was filed by a public interest group in the Court of
Appeal, calling upon the Court to compel President to
appoint the members of the Elections Commission under the
Seventeenth Amendment to the Constitution. It was contended
that Article 41B of the Constitution did not permit the
President to wield unfettered powers over the appointment of
the Elections Commission, and that she had no discretion
over the appointments once the Constitutional Council
forwarded its recommendations. However, it was held that
Article 35(1) of the Constitution gave ‘blanket
immunity’ to the President from proceedings instituted or
continued against her in any court in respect of anything
done or omitted to be done in her official or private
capacity, except in limited circumstances constitutionally
specified in Article 35(3). The Court later reiterated this
position in Visvalingam v. Attorney-General C.A. Application
No. 668/2006, Court of Appeal Minutes, 2 June 2006, also
published in LST Review, Volume 16 Issue 224 June 2006. This
position may, however, be contrasted with the previous case
of Silva v. Bandaranayake [1997] 1 Sri LR 92 where the
majority of the Supreme Court examined the presidential act
of appointing a Supreme Court judge despite the
constitutional bar relating to presidential immunity. The
appointment itself, however, was ultimately not struck down.
Commentators have compared the two cases to arrive at the
conclusion that the immunity principle has been
inconsistently applied by the courts, which has led to
uncertainty in the law. See Kishali Pinto-Jayawardena, The
Rule of Law in Decline: Study on Prevalence, Determinants
and Causes of Torture and Other Forms of Cruel, Inhuman or
Degrading Treatment or Punishment (CIDTP) in Sri Lanka, The
Rehabilitation and Research Centre for Torture Victims
(2009), at FN.334.

[61] See International Bar Association (IBAHRI),
Justice in Retreat: A report on the independence of the
legal profession and the rule of law in Sri Lanka, (May
2009), at 7. In this report, the ruinous impact of the
politicisation of the Office of Sri Lanka’s Chief Justice
was pithily commented on in the following manner: ‘The
judiciary is currently vulnerable to two forms of political
influence: from the Government and from the Chief Justice
himself. The nature and degree of influence oscillates
between the two and depends on the relationship between them
at the time. The perception that the judiciary suffers from
political influence has arisen in recent years due to the
excessive influence of the Chief Justice, the apparently
inconsistent jurisprudence of the Supreme Court in relation
to certain issues and through tensions between the judiciary
and the executive…The perceived close relationship between
the Chief Justice and the Government has from time to time
made individual judges reluctant to return judgments which
may be perceived to be critical of the executive. This may
be illustrated by the scarcity of dissenting judgments
during his tenure in office.’

[70] The relevant ER provisions applicable between
2005-2011 provide for a similar framework and will be
discussed later in this Study. For instance, Regulation 19
of Emergency Regulations of 2006 provides: ‘No action or
suit shall lie against any Public Servant or any other
person specifically authorized by the Government of Sri
Lanka to take action in terms of these Regulations, provided
that such person has acted in good faith and in the
discharge of his official duties.’ Morover, Regulation 73
of the Emergency Regulations of 2005, section 9 and 23 of
the Public Security Ordinance No. 25 of 1947 and section 26
of the Prevention of Terrorism (Temporary Provisions) Act
No. 48 of 1979 each provide indemnity to public officials
acting in good faith. See International Commission of
Jurists, Sri Lanka: Briefing Paper on Emergency Laws and
International Standards (March 2009), available at:
http://www.icj.org/
IMG/SriLanka-BriefingPaper-Mar09-FINAL.pdf, [‘ICJ,
Briefing Paper on Emergency Laws and International
Standards’]. It is noted that these clauses were left
untouched in the May 2010 amendments to the Emergency
Regulations.

[71] Amnesty International, Sri Lanka,
Implementation of the Recommendations of the UN Working
Group on Enforced or Involuntary Disappearances following
their visits to Sri Lanka in 1991 and 1992, AI Index,
ASA/37/04/98, February 1998, at 9.

[73] Report of the
United Nations Secretary General’s Panel of Experts on
Accountability in Sri Lanka, 31 March 2011, at
www.un.org/News/dh/infocus
/Sri\_Lanka/POE\_Report\_Full.pdf, at 10.

[74] [1991] 2
Sri.L.R. 56.

[75] Ibid. at 66. The Court was of the
opinion that ‘f upon being so commanded such assembly does
not disperse or if without being so commanded it conducts
itself in such a manner as to show a determination not to
disperse, the police officer is empowered to proceed to
disperse such assembly by the use of such force as may
reasonably be necessary to disperse such assembly.’

[76]
The researchers particularly acknowledge the guidance
provided by the project advisor as well as the reviewer in
this part of the analysis.

[77] 1968 (AC) 910
(H/L).

[78] 345 US 1 (1953).

[79] Ibid.

[80] 1968 (AC)
910 (H/L).

[81] 1973 (AC) 388 (H/L).

[82] [1993] 3 All
ER 584 (EAT).

[83] In that case, the Court distinguished
between police grievance procedures and police disciplinary
procedures (the plea being available only to the latter on
being a purely internal matter).

[84] In the matter of An
Application by Owen McCoughty and Pat Grew for Judicial
Review [2004] NI Q.B.2.

[85] See The Times, 30 September
1990. [1995] 1 AC 274.

[86] See The Times, 6 February
2004. [2004] UKHL 3.

[87] Article 6 of the ECHR deals with
the right to fair trial.

[88] Edwards and Lewis v. UK
Application Nos. 39647/98 and 40461/98; Also see The Times,
29 July 2003.

[89] [2003] 1 WLR 3006.

[90] See ibid,
obiter, Lord Bingham giving the opinion of the Appellate
Committee.

[91] Daniel Appuhamy v. Illangaratne, (1964) 66
NLR, 97, at 103, 116 and 127; Also see for comparative
purposes in the Indian context: State of U.P. v. Rajnarain
AIR (1975) SC 865.

[92] Keerthiratna v. Gunawardena (1956)
58 NLR 62, at 66. Also see the comparative Indian precedent
in Gupta v. Union of India, AIR (1982) SC 149.

[93] [2000]
2 Sri LR, 111.

[94] Ibid. per Justice Nihal Jayasinghe
opining that in Keerthiratna v. Gunawardena (1956) 58 NLR
62, Justice HNG Fernando had not given his mind to the
possible overlap between sections 123 and 124 of the
Evidence Ordinance and to the possible injury to the
interest of the public.

[95] Ibid.

[96] Black’s Law
Dictionary, (3rd Ed.), (2006), at 393. This discussion
originated from a useful reflection in Fernando, Basil, The
Rule of Law and Democracy in Sri Lanka, Asian Human Rights
Commission (March 2012).

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